Unified Patent Court Resource Center

The Unified Patent Court (UPC) and the European patent with unitary effect (Unitary Patent) are revolutionizing the way patents are enforced in Europe. McDermott’s Intellectual Property team is deeply familiar with the patent landscape in Europe and the United States and is well-positioned to advise clients on developing an appropriate UPC plan of action and integrating it with their broader international strategy.

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OVERVIEW

The goal of the UPC is to reduce the cost and complexity associated with enforcing patents in the EU Member States and to generally improve the patent system in Europe. A UPC decision on infringement, validity, injunction and damages will be enforceable in all participating states—currently 17 countries including France and Germany. The UPC will be the exclusive forum for actions relating to Unitary Patents. It will also be competent for traditional European patents, unless the European patent has been proactively opted out, and for supplementary protection certificates granted for European patents.

CAPABILITIES

The UPC provides many opportunities and potential benefits but, as a new court, it remains untested. We are here to advise clients and help them navigate any uncertainties. McDermott’s capabilities include:

Developing a Robust Cross-Border Strategy. We offer in-depth knowledge of our clients’ industries, including the technical, economic and regulatory environments, and can advise on both offensive and defensive strategies.
- Offensive. Our team can advise on whether the UPC is the right avenue for enforcement according to a client’s priorities and goals. When the time comes, we can prepare and file infringement and revocation actions in the UPC. We can also advise on whether US or UK litigation should be included in the enforcement strategy.
- Defensive. Our team is well qualified to advise on patents that may be at risk of central attack and products that may face heightened infringement risk by the new venue. We can also help manage those risks and defend against competitor attacks. If an action is filed, we can prepare the defense in the litigation.
- Opt-out. Our team can advise on whether opting out of the UPC is the right course of action. Below are just a few example reasons to consider.

EXAMPLE REASONS TO OPT-OUT	EXAMPLE REASONS TO NOT OPT-OUT
The patent or patent family is too valuable to risk central revocation in the participating UPC Member States	The UPC could provide a speedy decision awarding an injunction and damages for several UPC Member States
A dispute with another party may lead to an action before the UPC, preventing you from opting out at a later time	A competitor may bring national proceedings and remove the possibility of opting back in at a later time
German bifurcation between infringement and invalidity proceedings increases the chances of obtaining an injunction more quickly	It may reduce costs and administrative time when compared to multiple national court actions because evidence gathered in one country can easily be used UPC-wide
The patent or patent family has already unsuccessfully opposed by a competitor, and is therefore susceptible to an action for central revocation

Unitary Patent Filings. Our team can assist with the strategy and paperwork for obtaining Unitary Patents and national patents.
- R&D and License Agreements. We can also advise on how to address existing or to-be-negotiated R&D and licensing agreements.